2309836 (Refugee)

[2024] AATA 1859

2309836 (Refugee) [2024] AATA 1859 (30 May 2024)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  2309836

COUNTRY OF REFERENCE:                   Samoa

MEMBER:  Don Smyth

DATE:  30 May 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 May 2024 at 4:39pm

CATCHWORDS
REFUGEE – protection visa – Samoa – applicant left Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424A

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 June 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant, who claims to be a citizen of Samoa, applied for the visa on 30 January 2023.

2. For the following reasons, the Tribunal has decided to affirm the decision under review.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Under s 65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.

2. So far as is relevant to this matter, s 36(2) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa may only be granted if the applicant is in Australia.

3. Movement records indicate that the applicant is not in Australia. It appears that he left Australia [in] August 2023. On 1 May 2024, the Tribunal wrote to the applicant pursuant to s 424A of the Act advising that records showed that he is outside Australia and therefore could not be granted a protection visa. The applicant was invited to give comments on or respond to the information in writing. The applicant was advised that his comments or response should be received by 15 May 2024. No comments or response have been received by the Tribunal. In all the circumstances, the Tribunal considers it appropriate to make a decision on the review without inviting the applicant to appear before the Tribunal.

4. The Tribunal is satisfied from the circumstances set out above that the applicant is not in Australia. Therefore, the applicant does not satisfy the requirements of s 36(2) and cannot be granted a protection visa.

5. Having reached this conclusion, it is not necessary to consider the applicant's substantive case for the grant of the visa.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a protection visa.

Don Smyth Member